IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.4801/2013 BETWEEN :
DR K N SRIKANTEGOWDA S/O LATE K.V. NAGARAJEGOWDA, AGED ABOUT 73 YEARS, R/O 100, 5TH MAIN, YADAVAGIRI, MYSORE 571 613 ... PETITIONER (BY SRI: A H BHAGAVAN, ADVOCATE) AND 1. Y N SHANKAREGOWDA S/O LATE N. NAGAIAH, AGED 55 YEARS, R/O NO.90, SANMARGA 2ND STAGE, SIDDARTHANAGAR, MYSORE 571 610 2. STATE OF KARNATAKA BY LASHKAR POLICE STATION, MYSORE REPRESENTED BY S.P.P BANGALORE-560 001 ... RESPONDENTS (BY SRI K.V.THIMMAIAH FOR SRI H S CHANDRAMOULI, ADVOCATE FOR R1 SRI I.S.PRAMODCHANDRA, SPP-II FOR R.2) THIS CRL.P FILED UNDER SECTION 482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 23.01.2013 PASSED BY THE JMFC (II COURT), MYSORE IN C.C.NO.45/2013 CONFIRMED BY THE PRL. DISTRICT AND SESSIONS JUDGE, MYSORE IN CRL.RP.NO. 106/13 ON 21.06.2013 AND QUASH THE PROCEEDINGS IN C.C.NO.45/2013 ON THE FILE OF THE JMFC (II COURT), MYSORE.
This petition coming on for Hearing this day, the Court made the following :
O R D E R The petitioner has sought to quash the proceedings initiated against him in C.C.No.45/2013 for the offences punishable under Sections 448, 504, 323, 379 read with Section 34 of IPC.
2. Heard learned counsel for the petitioner, learned counsel for respondent No.1 and learned State Public Prosecutor for respondent No.2.
3. The petitioner herein took a premises on lease from Mysore Co-operative Bank Ltd and was running a Clinic in the said premises. Respondent No.1 claiming to be a sub-tenant of a portion of the said property lodged a complaint against the petitioner on 26.06.2009 alleging that the petitioner herein broke open the lock put by him to the main door and trespassed into his room. In the complaint, he has further alleged that the matter was reported to the Police and he was asked to break open the lock and to gain entry into the room. Accordingly, when he was breaking open the lock, the petitioner herein restrained him and issued threats. The said complaint was registered in Crime No.208/2009. After investigation, ‘B’ report was submitted before the Court.
4. The first respondent filed a protest petition and in support thereof, examined himself and two more witnesses. Considering his sworn statement and the testimony of two witnesses, the learned Magistrate took cognizance of the above offences and issued summons to the petitioner by order dated 23.01.2013. The petitioner challenged the said order before the Sessions Court under Section 397 of Cr.P.C. The revision petition was dismissed by order dated 21.06.2013 on the ground of maintainability as well as on the ground that the first respondent has made out a case for prosecution of the petitioner for the above offences. Feeling aggrieved by the order of cognizance taken by the learned Magistrate, the petitioner is before this Court.
5. Learned counsel for the petitioner would submit that respondent No.1 has no right whatsoever in the premises taken on lease by the petitioner from the bank. He was not a subtenant in any portion of the property at any point in time. The petitioner himself had lodged a complaint against the first respondent in Crime No.233/2008 and a charge sheet was laid against the first respondent for the offences punishable under Sections 448, 323 and 504 of IPC. The said proceedings are still pending trial. The allegations made in the complaint are far from truth. The first respondent did not produce any material along with his protest petition to show that he had lodged any complaint with regard to the alleged incident which goes to show that there was no truth or substance whatsoever in the allegations made in the complaint. Further, it is submitted that in view of the false claim laid by the first respondent, the petitioner was constrained to file a suit in O.S.No.1721/2008 for declaration and permanent injunction against the defendant. In the said suit, the first respondent took up a plea that he was in possession of the suit property as a sub-lessee. The trial Court having rejected the said plea, issued an order of permanent injunction restraining the first respondent from interfering with the peaceful possession and enjoyment of the property by the petitioner. The said order is confirmed by the Appellate Court in RA No.448/2011 dated 16.12.2011. In the said circumstance, the trial Court without considering any of these facts and circumstances merely on the basis of the uncorroborated self-serving statement of the petitioner has taken cognizance of the offence. The sworn statement made by the first respondent, even if accepted on its face value, does not make out the ingredients of any of the offences alleged against the petitioner. Thus contending that the prosecution of the petitioner is wholly illegal and an abuse of process of Court has sought to quash the same in exercise of the powers under Section 482 of Cr.P.C.
6. Learned SPP appearing for the second respondent would submit that having regard to the nature of the allegations made against the petitioner and for want of evidence, the Investigating Agency had submitted a ‘B’ report, under the said circumstance, there was no material before the trial Court in proof of the accusations leveled against the petitioner.
7. Upon hearing the learned counsel appearing for the petitioner and the learned SPP and on perusal of the sworn statement of the complainant and the witnesses examined by him, I find that the first respondent has failed to make out a case for the prosecution of the petitioner for the offences alleged against him. The accusations leveled against the petitioner are that the petitioner herein broke open the lock put by the first respondent and trespassed into the room which was in his possession on the date of the incident. Except making such an assertion in the complaint as well as in his statement, the first respondent did not produce any reliable evidence in this regard. Undisputedly, the premises in question was owned by the bank. The petitioner himself was a lessee under the bank. Under the said circumstance, the claim of the first respondent that he was a sub-tenant under the petitioner could not have been accepted by the trial Court without there being any prima-facie material in proof thereto. The decree obtained by the petitioner in O.S.No.1721/2008 conclusively establishes that respondent No.1 is not in possession of any portion of the property held on lease by the petitioner. Under the said circumstance, there was absolutely no occasion for the petitioner either to break open the lock or to trespass into his property. The unimpeachable documents produced by the petitioner clearly indicate that the first respondent was not in possession of any portion of the lease hold premises as on the date of the alleged incident, as a result, none of the charges leveled against the petitioner could stand the test of law.
8. In the light of the above facts and circumstances, the prosecution of the petitioner for the above offences is nothing but an abuse of process of Court and cannot be sustained in law. Accordingly, the petition is allowed. The proceedings initiated against the petitioner for the offences punishable under Sections 448, 504, 323 and 379 of IPC and the order of taking cognizance dated 23.01.2013 passed by the learned JMFC (II Court), Mysore in C.C.No.45/2013 are hereby quashed.
Sd/- JUDGE AKC